In a largely expected ruling, the U.S. Supreme Court unanimously rejected an attempt to have a decades-old prescription drug widely used to induce abortions, mifepristone, pulled from the market, but only because the group that filed the lawsuit lacked standing. The court did not rule on the actual merits of the case, nor on the drug’s safety and viability, or the FDA’s decision to approve the medication. Civil rights and other legal experts have long held Republicans, especially after Roe v. Wade was overturned, want to go after medication abortion and contraception, and warn after Thursday’s SCOTUS ruling those efforts will continue.
Mifepristone, which was first approved for use in France in 1988, was approved for prescription use in 2000 by the U.S. Food and Drug administration, which states it is safe to use.
“Justice Brett Kavanaugh, writing for the court, wrote that while plaintiffs have ‘sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone,’ that does not mean they have a federal case,” NBC News reports.
Justice Kavanaugh advised the plaintiffs that they “may present their concerns and objections to the president and FDA in the regulatory process or to Congress and the president in the legislative process.”
“And they may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral processes,” he added.
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Robert Reich, the professor of public policy and former U.S. Cabinet Secretary, wrote: “The Supreme Court dismissing challenges to the FDA’s approval of mifepristone is good news, but the fight’s not over. A MAGA-controlled FDA could effectively ban all abortion medications without even involving the courts or Congress. Abortion access is on the ballot this fall.”
Legal journalist Cristian Farias, added, “Today’s decision denying standing to religious doctors challenging the FDA’s approval of mifepristone says nothing about states doing the same. That’s a big problem, because Trump judge Matthew Kacsmaryk allowed a trio of states to intervene in this very case. He’s on a mission.”
Also pointing to the Kacsmaryk decision, Slate’s Mark Joseph Stern warns, “Today’s decision will probably not stop him from issuing more nationwide restrictions on mifepristone.”
Legal experts say the way the court ruled was anticipated, the physicians’ claim to standing was “utterly ridiculous,” and warn the right will return with another attack on medication abortion.
Attorney Moe Davis, the well-known and outspoken retired U.S. Air Force Colonel, professor of law, and judge, declared: “To be clear, the Supreme Court did not decide the merits of the case. They said the party challenging mifepristone lacked standing (i.e., they couldn’t show they suffered any injuries) to bring the case. Another party could (and will) try again. This isn’t a win, it’s a delay.”
Professor of law and legal historian Mary Ziegler said, “The fight over abortion pills and the Comstock Act isn’t over. Other plaintiffs are ready to bring identical claims and assert they have standing. And conservatives argue that a Trump DOJ could enforce the Comstock Act as a ban and force SCOTUS to take up the q.”
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Alex Aronson, former Chief Counsel to the U.S. Senate Judiciary Committee, now Executive Director of the non-profit organization Court Accountability, responded to Thursday’s ruling from a tactical perspective.
“Classic Roberts Court maneuver:
-grant dangerous, frivolous, right-wing case with no business on its docket;
-light country’s hair on fire;
-smack down frivolous case to be hailed as reasonable and moderate, giving cover to other destruction.
-still advance right-wing agenda”
Professor of law Melissa Murray, making clear this ruling is likely not the end, warned, “don’t breathe easy yet.”
“This decision preserves access to medication abortion… FOR NOW,” she wrote. “There will be another case–with better plaintiffs–before the Court faster than Thomas can book a ride on Crow’s private jet.”
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